Get the Facts

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Get the Facts is our weekly e-newsletter sent out every Tuesday. Find links to current industry related articles, resources, member benefits, career help, and the popular Legal Hotline Question of the Week! Browse through current and previous editions of Get the Facts below.  For questions or comments regarding the weekly e-newsletter, email Cara McNeil at cara.mcneil@warealtor.org or call 1-800-562-6024, ext. 126.

Any information contained within Get the Facts does not constitute legal counsel. The Legal Hotline Attorney does not represent Washington REALTORS® nor Washington REALTOR® members. Always consult with your designated broker/owner for brokerage practices. The Legal Hotline Q & A of the week is designed for and distributed to Washington REALTOR® Members. If you are a member and you have further questions about the Legal Hotline Q & A of the week, please email the Legal Hotline Attorney at legalhotline@warealtor.org.

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  • July

    July 10

    Get the Facts 071018

    I need explanation of the Form 90K (the notice form associated with Form 22B, the Buyer's Home Sale Contingency). My listing sold, with a home sale contingency (Form 22B) and a Form 21 that showed a close date of July 11... Read More...

    July 3

    Get the Facts 070318

    More and more often, we are receiving offers from buyers where the buyer broker is demanding more compensation than is offered through the MLS. Is this allowed? It appears that most of these buyer brokers are under an erroneous impression that we (the listing office) are receiving a greater share of the compensation paid by the seller. Is that even relevant? Read More...

    June

    June 19

    Get the Facts 061918

    Our firm had a listing 2 years ago that was cancelled because Seller changed his mind about selling. During the term of the listing agreement, Seller gave Listing Broker invoices/receipts from foundation work performed but never asked for them back. Fast forward to present day, Seller is now listed with a different firm and a Buyer Broker with our firm has asked the FORMER Listing Broker (with our firm) what she knows about the foundation. How would you advise our Listing Broker? Read More...

    June 12

    Get the Facts 061218

    I am constantly being asked by my buyers "how much earnest money is normal"? What is your recommended answer? Read More...

    June 05

    Get the Facts 060518

    Would the additional down provision in Form 22AD supersede the VA Amendatory/Escape Clause when the Buyer has applied for a VA Loan and the appraisal comes in low? The VA says that a Buyer may not waive the VA Amendatory/Escape Clause and that it is required in every VA transaction. Form 22AD states that it replaces the Appraisal Less Than Sales Price provision in Form 22A, but does not mention the VA clause, which seems to replicate paragraph 7b(ii) in Form 22A. Read More...

    May

    May 29

    Get the Facts 052918

    So many agents do not include a proper Exhibit A with their listings, and instead use an old deed with initials. Is this acceptable? Also, if only one party initials the Ex A, or none do, is this acceptable? Read More...

    May 22

    Get the Facts 052218

    Is a broker required to submit transaction paperwork for rejected offers and offers that are rejected as a result of no response to their managing broker/company? Is the Brokerage required to review and maintain the following transaction paperwork for rejected offers and sale fails? Read More...

    May 15

    Get the Facts 051518

    I am the listing agent. Seller countered an offer that identified 3 buyers as purchasers. I wrote on the Seller Counter that seller's offer shall expire “April 10 at 10AM.” One of the buyer's signatures accepting counter was at 10:59AM on April 10. We are now a month later and past the inspection period. Can seller terminate the transaction based on the late signature by buyer accepting seller's counter? Read More...

    May 08

    Get the Facts 050818

    Seller has signed a binding purchase agreement which is now pending with no known problems or contingencies. Another agent, whose buyer lost out when 7 offers were presented on the first day theproperty was on the market, insists that we present her offer to the seller.  Read More...

    May 1

    Get the Facts 050118

    We have several clients who are buying and selling as LLCs, trusts, and so forth. While I understand that the entity can be the principal as named, how does that contract get signed Read More...

    April

    April 24

    Get the Facts 042418

    The listing broker is the daughter of the Seller. The Seller is an investor and also a licensed real estate broker with the same firm. There is no mention of any of this on the listing. When should any of this information be disclosed? This was the listing broker’s response: “We disclose everything to the buyer once a mutual contract is accepted."  Read More...

    April 17

    Get the Facts 041718

    In two recent transactions, the listing agent has asked for a rescission (Form 51) when I would use a termination notice. The first scenario, the buyer had not received the CCRs and bylaws for a condo sale within the PSA timeframe.  Read More...

    April 10

    Get the Facts 041018

    We have experienced a significant increase in FSBO/Un-Listed Sale Transactions in our office recently. I am seeking advice in proper training of my Broker's as to Best Practices and compliance with Agency Law. Read More...

    April 3

    Get the Facts 040318

    We have mutual acceptance with Mrs. Buyer purchasing as a "married person purchasing as her separate estate". One week later, Selling agent submits an addendum adding Spouse, Mr. Buyer, and changing status to "a married couple".  Read More...

    March

    March 27

    Get the Facts 032718

    It appears that a questionable forms combination is being used frequently in the current market. Buyer brokers are attempting to use form 22AA and 22AD, without a 22A, to preserve appraisal protections, guarantee a larger down payment if necessary, but not have a financing contingency. Read More...

    March 20

    Get the Facts 032018

    Buyer broker called me, listing broker, to say that the buyer would double his earnest money if seller would extend the closing date. Without a financing contingency, would doubling the earnest money help my seller in any way, if we fail to close? Read More...

    March 13

    Get the Facts 031318

    My question is regarding lender referrals. Is it legal for a real estate agent to only have one lender to whom they refer their clients? Also, is it legal for a real estate team leader to require the agents on the team to recommend and refer that lender to their clients? Can you talk about the legal ramifications of this? Read More...

    March 06

    Get the Facts 030618

     I was at an open house and a buyer asked me to write an offer. I told buyer that I am the listing broker. I also gave buyer the Law of Agency pamphlet before buyer signed the documents.... Read More...

    February

    February 27

    Get the Facts 022718

    If seller retains possession after closing, what is seller's obligation with respect to giving buyer a key at closing and condition of the property? Read More...

    February 20

    Get the Facts 022018

    Is the buyer obligated to receive written consent from the Seller if buyer changes the down payment amount stated in the Financing Contingency, Form 22A?  Read More...

    February 13

    Get the Facts 021318

    We represent a buyer who was pre-approved for financing at mutual acceptance. A financing contingency was included. On the 5th business day, the buyer changed lenders. Read More...

    February 06

    Get the Facts 020618

    If additional buyers sign the Form 22Z (Additional Signer Addendum), are they required to sign and initial each page of the Purchase and Sale Agreement? It says, “all terms and conditions of the Agreement are incorporated herein by reference as though fully set forth below.” Read More...

    January

    January 30

    Get the Facts 013018

    Where can I find out more information about the recent Hirst legislation on water supply from wells and how will it affect my clients? Read More...

    January 16

    Get the Facts 011618

    Lately, I've noticed several brokers writing "Warranty provided by seller is a standard one year builder's warranty" on an addendum to a purchase and sale agreement for new construction. Read More...

    January 09

    Get the Facts 010918

    We watched the video this morning that said the buyer's inspection should not be included with the Form 35R. If you are representing the buyer, don’t you want to use the inspection as a tool to make the seller aware of discovered material defects? That way they have to disclose them to future buyers. There is some confusion here. Read More...

    January 2

    Get the Facts 010218

    Buyer has performed an inspection based on Form 35 and prior to the expiration of buyer's initial inspection period, buyer wants to bring an electrician and a plumber into seller's house to inspect the electrical and plumbing systems... Read More...

  • December

    December 19

    Get the Facts 121917

    I know it is okay to refer contractors to our clients and the conventional wisdom is to refer at least three and let the client choose who they prefer to work with. After making those referrals, many brokers step back and let the client make the decisions. However, I think many brokers get way too involved in this process... Read More...

    December 12

    Get the Facts 121217

    We have a mutually accepted PSA with a close date of 11.29. Buyer sent an extension which the Listing Agent said seller would sign once she cooled off. Extension was never signed and we are now out of contract. On 12/7, Buyers sent termination notice based on failed financing Read More...

    December 05

    Get the Facts 120517

    We have a listing and accepted a contingent offer (Form 22B). The buyers also received a contingent offer on their home. Buyer's agent sent over the Form 90L, asking our seller to consent to the buyer's sale of buyer's property to another contingent buyer... Read More...

    November

    November 28

    Get the Facts 112817

    I have noticed that some listing brokers are issuing the allowed notices on the financing addendum pertaining to "Seller's Request for Loan Information" and the "Right to Terminate Notice" prior to the agreed upon time periods, usually the 10 days or 30 days... Read More...

    November 21

    Get the Facts 112117

    Buyer waived all contingencies and is a cash buyer. The buyer's broker was given the Seller’s Disclosure at the time of mutual acceptance. Days before closing, the Buyer's Broker called to say that the smoke detector and carbon monoxide detector boxes had not been checked... Read More...

    November 14

    Get the Facts 111417

    In your May 20, 2017 video about low appraisals, you suggest that a Buyer might want to choose not to notify Seller of a low appraisal in some cases in order to prevent Seller from responding in a way that forces buyer to either waive the financing contingency or terminate the PSA. Read More...

    November 7

    Get the Facts 110717

    Is a buyer or seller prohibited from withdrawing their offer or counteroffer, contained in the Form 35R (Inspection Response Addendum), prior to acceptance? Read More...

    October

    October 31

    Get the Facts 103117

    Buyer submits offer and contract gets signed around. In the offer, buyer had loan pre-approval letter from Lender “A”. A few days after mutual acceptance but BEFORE the 5 day period referenced in paragraph 1 Form 22A (Financing Addendum), buyer changes lender. Buyer did not get Seller’s permission as this was within the 5 days. Did Buyer waive the financing contingency since buyer did not get Seller’s permission? Listing Agent says buyer waived since buyer attached a pre-approval letter from Lender “A” with offer. Listing agent is arguing that when Seller agreed to work with this Buyer, Seller took into account the lender that buyer was using. Buyer Broker says no waiver since lender change was made within the 5 days. And if a buyer does change lenders within the 5 days, does anything compel buyer to inform Seller of this change? Read More...

    October 24

    Get the Facts 102417

    The Escalation Addendum, Form 35E, says “Seller must include the entire offer from the buyer whose offer was used to escalate the purchase price. Seller's failure to include the complete escalating offer will defeat seller's escalation of the purchase price.” How long does the seller have to deliver the complete offer? If it is not delivered with the mutually accepted P&S then is it too late? Is the buyer’s broker obligated to request the competing offer? At what point is the escalation ineffective and the buyer recognizes a lower purchase price? Read More...

    October 17

    Get the Facts 101717

    Is a WA real estate licensee able to write an offer on a property (not that agent's listing) for two different buyers? Does the agent need to disclose to both parties that she is writing another offer on the same property? Read More...

    October 10

    Get the Facts 101017

    Does the 'sale of home' contingency need to be listed on a pre-approval letter from lender? Also, If a buyer submits an offer and doesn’t mention that the buyer needs to sell a property first, what recourse does the seller have if they don’t find out until 30 days later in the transaction? Read More...

    October 3

    Get the Facts 100317

    I have a question regarding the form 44 - Bump Notice, where the buyer has the option of removing the contingency of having to have their home sold in order to proceed with the sale. "Buyer’s Property Not Sold – Contingency Waived. Buyer has not accepted an offer to sell...
    Read More...

    September

    September 26

    Get the Facts 092617

    Broker writes an offer for buyer and includes a Form 22A (financing contingency), showing that buyer is putting 25% down and taking a conventional first loan. In buyer's offer, broker and buyer also include a Form 22AW... Read More...

    September 19

    Get the Facts 091917

    Buyer is purchasing an expensive property and completes the Form 22A to say that buyer is putting 20% (or even more) down. In reality, buyer is putting down only a small amount of their own cash (non-contingent funds), maybe 5-15%, and buyer is taking a conforming, conventional loan as well as a second loan... Read More...

    September 12

    Get the Facts 091217

    I am the Listing Broker and another firm represents the Buyers. Buyer's Earnest Money Deposit is being held in the buyer firm's Trust Account. All buyer contingencies are waived or satisfied but the parties are still within ten days following mutual acceptance...
    Read More...

    September 05

    Get the Facts 090517

    What happens if the seller has completed all the items on the 35R and the buyer has a re-inspect and inspector says not all was done, seller does more work and inspector says it is okay with a few minor items, no material defects.
    Read More...

    August

    August 29

    Get the Facts 082917

    I have a hard time getting Firpta forms from other agents. Do we have to have them on file and do auditors look for them? Read More...

    August 22

    Get the Facts 082217

    Our timelines to negotiate the 35R go past the closing date. Does the closing date date automatically extend until 35R is agreed upon? Read More...

    August 15

    Get the Facts 081517

    I have a new buyer. I begin showing them homes and we cannot find, or win a home for them. I list a new home (or already had a listing) and they ask to see this listing. I show the home (my listing) and they want to write a contract... Read More...

    August 08

    Get the Facts 080817

    If a buyer waives the inspection contingency on form 35, must a seller allow access to a licensed home inspector for the purposes of performing a home inspection? Read More...

    August 01

    Get the Facts 080117

    Buyer and Seller are under contract. Contract has a Form 22Q and a Form 22EF. Form 22EF paragraph three shows Buyer is relying on contingent funds from sale of 22Q house. 22Q house failed to close. Buyer informed Seller within two days of said failure... Read More...

    July

    July 11

    Get the Facts 071117

    My sellers completed Form 17 and with respect to both water rights and remodeling, they checked "no". Then, they did not check any of the boxes for the sub-parts following those questions that begin, "If yes, ...". The buyer’s broker is insisting that these sub-part boxes be marked N/A... Read More...

    July 25

    Get the Facts 072517

    I have a managing broker in my firm who, with permission from his principal, signs documents for the principal, such as notices. (Joe Smith as agent for John Doe, seller) They have confirmed with a real estate attorney that as an agent for the principal, they can do this when the principal is not readily available... Read More...

    July 18

    Get the Facts 071817

    My seller's sale failed because of buyer's financing, but my seller believes that the buyer did not perform. About a week before the closing date, the buyers' lender sent this email:
    "We are not ready to issue the closing disclosure as we are trying to figure out the co-borrower income.
    Read More...

    July 04

    Get the Facts 070417

    We represent the seller. A buyer is offering a very large nonrefundable deposit in the event that buyer fails to complete the purchase for any reason. RCW 64.04.005 limits the amount of earnest money that seller may keep to not more than 5% of purchase price. Buyer’s agent says that seller may keep more than 5%... Read More...

    June

    June 27

    Get the Facts 062717

    I am the buyer's agent. On form 21, item #13, "Charges and Assessments," I typically check the box "assumed by buyer". My reasoning is that if the sewer capacity charge has not been paid off, a buyer will agree to take over payment after closing. Read More...

    June 20

    Get the Facts 062017

    I'm the listing agent. Seller accepted an offer with a Form 35 inspection contingency with 10-day timeline. I received a timely termination, based on the inspection contingency, on Form 35R. However, the buyers just got cold feet. They didn't perform an inspection.
    Read More...

    June 13

    Get the Facts 061317

    If a property is in an Estate and the executors of the estate know of any material defects, do they need to disclose those defects? If so, in what form? Read More...

    June 06

    Get the Facts 060617

    I am listed as a Co-Owner in the XYZ Team LLC and work at ABC Realty. As part of our LLC agreement, I'm a 49% owner. The question I have relates to how I operate as a broker working with clients. I'm often involved in writing and negotiating the Purchase and Sale agreements or Listing Agreements. Read More...

    May

    May 30

    Get the Facts 053017

    When must a Form 41D - Inspector Referral Disclosure be used, what is its purpose and should it be attached to the buyer's offer? Read More...

    May 23

    Get the Facts 052317

    As a Selling Agent, I often find Listing Agents pressuring my clients to "release the earnest money as non-refundable" at mutual. The latest version was a Listing Agent who pressured my clients to sign a form stating the earnest money was converted to a non-refundable deposit released to seller. Read More...

    May 16

    Get the Facts 051617

    I have a buyer client who just closed on a piece of property and two days later, a neighbor told the new owner that there was going to be a road assessment due in several months of $10,000. The seller had disclosed in the Form 17 that there was a pending assessment for road repair. In our PSA, we checked the box... Read More...

    May 09

    Get the Facts 050917

    If a buyers Form 22A (Financing Contingency) says that buyer is getting a Conventional Loan with 10% down but then buyer applies for a Conventional 5% down loan, is this a change in loan type which would then waive their financing contingency if they didn't notify the seller and never got written consent? Read More...

    May 02

    Get the Facts 050217

    Our brokerage had a meeting about the importance of using the Evidence of Funds addendum on all transactions, however there is some verbiage on there that is misleading and we had one broker on the other side of a transaction flat out refused to have her buyers complete one. Read More...

    April

    April 25

    Get the facts 042517

    We have a seller who accepted an offer from our buyer, my buyer flew to the home to see the inspection and the inspection contingency was satisfied. The seller has now decided that they don't want to sell. Does our buyer have any options? Do we as the buyer's agent? Read More...

    April 18

    Get the Facts 041817

    Buyer's lender's appraisal was low and buyer gave seller notice by marking the first check box on Form 22AN and delivering 22AN, along with a copy of the appraisal, to seller. Seller marked the second check box in seller's response section and Read More...

    April 11

    Get the Facts 041117

    A firm is promoting a “Certified Pre-Owned Property” program where they, as listing firm, have already had a property inspection completed. The inspection report and a copy of a contractors estimate of repairs is included in the MLS Associated Documents and the PACMLS listing “Agent Confidential Remarks" state the following... Read More...

    April 04

    Get the Facts 040417

    I recently moved to a different real estate firm. When I tried to change the sign at my listing to show the new firm’s name, my old firm told me it was their listing, not mine. Then they said I still needed to return office keys and transaction files. Am I missing something? I thought clients and files belonged to me. Read More...

    March

    March 28

    Get the Facts 032817

    Using Form 22AD, the additional down payment is negotiated up front, at the time of mutual acceptance. Later the issue arises, after the low appraisal comes in, that buyer could have and is willing to pay MORE money (in addition to the previously agreed amount) to make up the difference. Read More...

    March 21

    Get the Facts 032117

    I represent a seller of a home who accepted an offer from a buyer. Buyer has performed inspection and has had appraisal done. Seller calls me today and says they changed their mind and are moving back into the house and want to cancel the sale. Read More...

    March 14

    Get the Facts 031417

    Are sign companies or real estate brokers subject to the "call before you dig" statute when digging a post hole for a yard sign? If a sign company or broker provides the sign to the owner and the owner puts it in the ground does the broker still have liability regarding the Dig Law? Read More...

    March 03

    Get the Facts 030717

    PSA included a Form 22A, Financing Contingency and a Form 35E, Escalation Addendum. In the Financing Contingency Addendum, seller agreed to pay 3% of the purchase price toward buyer's closing costs. The purchase price was calculated and agreed using the Form 35E.
    Read More...

    February

    February 28

    Get the Facts 022817

    My clients are under contract on a home and in the original listing the washer and dryer were not listed in the Appliances. My clients wanted those items included and the washer and dryer boxes were checked on line 5 of the PSA. Read More...

    February 21

    Get the Facts 022117

    Buyers have a Form 22B, Home Sale Contingency, and received a bump notice. They have responded that they are going to “waive” their contingency Form 22B (Sale of Buyer’s Property). The paragraph says, “Buyer understands that by waiving this contingency, Buyer waives all other contingencies in the Agreement (including inspection, financing, etc) Read More...

    February 14

    Get the Facts 021417

    All PSA documents except Exhibit A were signed on January 31. Exhibit A was signed by the parties on February 2. For calculation of the 10 day inspection contingency, which day is mutual acceptance? Read More...

    February 07

    Get the Facts 020717

    We represent a buyer in a purchase transaction subject to inspection. Buyer has delivered notice via a 35R for seller modifications. Per our agreement seller has 3 days to reply. Seller has not replied. If the expiration is 9pm on day 3 (subject to computation of time) what happens if the seller fails to respond to the first 35R notice? Read More...

    January

    January 31

    Get the Facts 013117

    If the buyers want to back out of a transaction due to the inspection and we use the 35R stating they are backing out and earnest money is to be refunded to the buyer, why are some title/escrow companies not accepting this? Read More...

    January 24

    Get the Facts 012417

    Form 35 says: "If Seller agrees to make the repairs proposed by the Buyer, then repairs shall be accomplished at Seller's expense in a commercially reasonable manner and in accordance with all applicable laws...." Does "in accordance with all applicable laws" mean the work must be done by a licensed contractor? Read More...

    January 17

    Get the Facts 011717

    At walk thru the day of signing closing documents (recording to be next day) purchasers discover that 35R work requirements have not been done. Buyers don't sign. They now do not want to proceed. Seller believes buyers have defaulted.
    Read More...

    January 10

    Get the Facts 011017

    What do you suggest we do when representing a buyer in this case? We wisely mark Form 21, Line 13, indicating that the seller will pay charges & assessments at or before closing but the seller counters by striking that choice and stating that buyer will assume. Read More...

    January 03

    Get the Facts 010317

    On the Purchase and Sale form, 1st page under Earnest Money, there is the 'Default' 1) Forfeiture of Earnest Money 2) Seller's Election of Remedies. My buyer is worried that by checking 2) Seller's Election of Remedies, he would be more liable should he decide to back out down the road for any reason than if we check the 1) Forfeiture of Earnest Money. Can you please explain what those 2 options mean?
    Read More...